State v. Giordano

• Decision Date: 21 December 1993
• Docket Number: No. 91-588,91-588
• Citation: 635 A.2d 482,138 N.H. 90
• Parties: The STATE of New Hampshire, v. Vincent GIORDANO.
• Court: New Hampshire Supreme Court

Page 482

635 A.2d 482

138 N.H. 90

The STATE of New Hampshire, v. Vincent GIORDANO.

No. 91-588.

Supreme Court of New Hampshire.

Dec. 21, 1993.

Jeffrey R. Howard, Atty. Gen. (Diane M. Nicolosi, Asst. Atty. Gen., on the brief, and Amy Vorenberg, Asst. Atty. Gen., orally), for the State.

Murphy, McLaughlin, Hemeon & Lahey, Laconia (Philip T. McLaughlin and Janice L. McLaughlin on the brief, and Mr. McLaughlin, orally), for defendant.

THAYER, Justice.

On June 8, 1989, the defendant, Vincent Giordano, was convicted in Superior Court (Pappagianis, J.) of one count of burglary contrary to RSA 635:1 (1986 & Supp.1992). He was sentenced on December 20, 1991, to an extended term of ten to thirty years imprisonment. He argues on appeal that the trial court erred: (1) by delaying his sentencing; (2) by denying his motion to dismiss based on the State's alleged violation of the trial court's sequestration order; (3) by denying his motion for a mistrial following an improper comment by the prosecutor during closing argument; and (4) by denying his motion to dismiss due to the loss of relevant, material, and exculpatory evidence taken by the State at the scene of the crime. For the reasons set forth below, we affirm.

On December 3, 1987, police officers responded to a report of loud noises in the vicinity of the Brayco International Corporation (Brayco) office building in Manchester. A search dog located the defendant hiding in the building, and he was arrested. A later search of the building revealed the following: general ransacking on the upper floors; on the first floor a suitcase containing such tools as a drill, drill bits, jigsaw blades, and chisels, and other suitcases containing numerous items from various places in the building; and damage to several doors, including a pried-open plywood door on the first floor, pry marks on the door to the second floor, and drill holes in the door to the third floor consistent with the drill found on the first floor. Brayco's manager told the police that the damage to the second-floor door had occurred in a prior break-in. A search of the defendant revealed both drill bits and saber saw blades in one of his pockets. The defendant was subsequently convicted.

The defendant first argues that the case should be dismissed because the trial court denied his State constitutional right to a speedy trial by allowing a thirty-one month delay between his conviction and sentencing. Although the defendant raised the issue of delayed sentencing below on three occasions, at no time did he seek dismissal on that ground below. He has thus waived his right to appeal on the issue of whether the case should have been dismissed. State v. Horne, 136 N.H. 348, 349, 615 A.2d 1251, 1252 (1992); State v. Dayutis, 127 N.H. 101, 104, 498 A.2d 325, 328 (1985).

The defendant next contends that the trial court abused its discretion and violated his State and federal constitutional rights to a fair trial in refusing to dismiss the complaint or to strike the testimony of certain police officers who had allegedly violated the trial court's sequestration order. In a pretrial motion, the defendant requested that all witnesses be sequestered during "the testimony of all other witnesses and further that they be so sequestered during opening statements by both sides." The trial court granted this motion. Before trial began, several police officers scheduled to testify at trial discussed the facts of the case. The defendant moved to dismiss the case, arguing that the officers had violated the order by their discussion. The trial court found that its order had not been violated and denied the motion.

Because the defendant did not frame an argument in constitutional terms below, he cannot do so now. State v. Stratton, 132 N.H. 451, 456, 567 A.2d 986, 989-90 (1989). We will address only the defendant's contention that the trial court abused its discretion in denying the motion.

The trial court that issued the order is in the best position to determine whether its order has been violated. See State v. Sands 123 N.H. 570, 597, 467 A.2d 202, 219 (1983). The question presented to the trial court involved only whether the express terms of the sequestration order were violated. The trial court reviewed the order to verify that it required sequestration only during the trial and denied the motion. We find no abuse of discretion by the trial court in denying the motion to dismiss.

The defendant next argues that the prosecutor's reference to the defendant as a "junkie" in closing argument, in violation of the trial court's ruling that the subject of drug addiction could not be inquired into, was so prejudicial as to require a mistrial. We disagree.

Mistrial is the proper remedy only if the evidence or comment complained of was not merely improper, but also so prejudicial that it constitutes an "irreparable injustice that cannot be cured by jury instructions." State v. Lemire, 130 N.H. 552, 554, 543 A.2d 425, 426 (1988). A trial court's denial of a mistrial will not be overturned absent an abuse of discretion, State v. Hunter, 132 N.H. 556, 561, 567 A.2d 564, 568 (1989), due to the trial court's unique ability to gauge the reaction of the jury to any potentially prejudicial information, State v. Ellison, 135 N.H. 1, 4, 599 A.2d 477, 480 (1991); Lemire, 130 N.H. at 555, 543 A.2d at 427.

Upon defense counsel's objection to the prosecutor's comment, the trial judge immediately instructed the jury that there was no evidence that the defendant was a junkie, and that they should "ignore [the statement] in reaching whatever verdict you reach." We assume that the trial court's instructions are followed by the jury. State v. Novosel, 120 N.H. 176, 186, 412 A.2d 739, 746 (1980). Moreover, the jury had already been made aware of the defendant's proclivity to abuse drugs through an extensive colloquy about drug use during cross-examination. The prosecutor's comment regarding drug use did not give to the jury any substantially material information, and thus was not prejudicial to the defendant. See State v. Drew, 137 N.H. 644, ----, 633 A.2d 108, 110 (1993).

The defendant lastly contends that the State's admitted loss of twelve photographs taken at the scene of the burglary denied him due process of law under both State and Federal Constitutions. We will consider the state claim first. State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983).

The following standard applies for determining whether the State's loss or destruction of evidence has violated a defendant's right to due process:

"[O]nce a defendant demonstrates that the State has lost or destroyed apparently relevant evidence, the State has the burden to demonstrate that it acted both with good faith, in the sense that it was free of any intent to prejudice the defendant, and without culpable negligence. If the State carries that burden, the defendant may not claim any relief unless he demonstrates that the lost evidence was material, to the degree that its introduction would probably have led to a verdict of not guilty, and that its loss prejudiced him by precluding the introduction of evidence that would probably have led to a verdict in his favor."

State v. Murray, 129 N.H. 645, 648, 531 A.2d 323, 325 (1987) (citations omitted).

The...